In-Depth: Unjust tenancy database practices

by Make Renting Fair Campaign11scon September 05, 2017

Finding out that you have been ‘blacklisted’ is every renter’s worst nightmare. While only a relatively small portion of the population is actually placed on a tenancy database, the fear of being blacklisted alone is enough to cause tenants great stress: A recent study found that being blacklisted is a genuine concern for half of renters, and that 14% avoided making a complaint or requesting repairs out of fear of adverse consequences.

Since 2011, Victoria’s Residential Tenancies Act (RTA) has included rules surrounding the use of tenancy databases which provide tenants some protections against unjust listings. A tenant can only be blacklisted if they have been found to have breached some specific requirements of the tenancy law (such as being in rent arrears, causing damage to the premises or leaving the premises unclean), AND:

If they owe compensation to the landlord that is more than the bond for any of those breaches, OR

The Tribunal (VCAT) has made a possession order based on any of those breaches

Tenants are are only allowed to be listed for up to three years. A landlord or agent is required to notify a tenant of their intention to add them to a blacklist and provide them with at least 14 days to object. They are also required to correct inaccurate listings.

While a tenant can apply to VCAT to have an incorrect listing altered or removed if the database provider does not comply with their request, VCAT currently has no discretionary powers to remove listings that are considered unjust.

INCREASING THE RISK OF HOMELESSNESS

Tenancy databases in Australia are run by private companies. Since it is virtually impossible for blacklisted tenants to be accepted for a rental property through a real estate agent, this means that these entities effectively have the power to determine whether someone gets a home or is forced into homelessness. Some tenants have reported having no other choice but to move interstate or into sub-standard accommodation as a result of being blacklisted.

Furthermore, whilst a landlord or agent is obliged to advise prospective tenants that they are listed in a tenancy database and to provide them with a copy of the listing, tenants can still repeatedly miss out on rental properties and not even realise why. A tenant generally has to pay a fee to a tenancy database provider in order to even find out whether they are listed, let alone the reason behind it.

The Make Renting Fair campaign supports prohibiting tenancy database providers from charging tenants a fee to receive a copy of their listing. While one tenancy database offers a free method of obtaining a database listing. Unfortunately, this method is only offered in hard copy form delivered via post. When a tenant is facing possible homelessness, they simply cannot afford to waste time waiting for a hard copy of their database listing.

IT’S NOT ALWAYS BLACK AND WHITE

The Make Renting Fair campaign also supports giving VCAT discretionary powers to rule against unjust blacklisting. Allowing VCAT to rule against incorrect listing isn’t enough – there needs to be protections in place for tenants who find themselves blacklisted for situations beyond their control.

There are a number of reasons that a tenant could be unjustly listed on a tenancy database:

Suffering from a sudden illness or injury. An unexpected injury or illness could strike anyone at any time. If, for example, a tenant is hospitalised after a severe car accident, their injury coupled with the stress of the situation could temporarily prohibit them from fulfilling their financial obligation to the landlord. A longer-than-expected recovery time could also put a strain on a tenant’s financial situation. While it is reasonably understandable for a landlord to look after their own interests, blacklisting the tenant in these circumstances effectively punishes them for getting sick or injured. When a tenant can be listed on tenancy databases for up to three years, that punishment can lead to severe ongoing hardship.

Taking in an ill or elderly loved one. Multigenerational households are a common trend in Australia, with one in five households having adults from two or more generations under the one roof. Families from many different cultural and economic backgrounds may end up living in a multigenerational household, be it planned or due to an unexpected turn of events. When a tenant requires a sick or elderly relative to move in with them (i.e. assigning a tenant to the property), it may not be possible to notify and seek approval from the landlord prior to their arrival. Most people will emphatically say, “Family comes first!” and tenants should not be punished for looking after their loved ones in a time of need.

Coping with family violence. If one party on a lease is abusive and violent toward another person and causes a breach of duty such as damage to the rental property, all tenants listed on the lease agreement risk being blacklisted. Overcoming family violence is difficult enough, and many women escaping family violence are already at risk of homelessness due to a lack of personal support networks and financial stability. Being blacklisted for the faults of their former partners essentially guarantees that these women and their children will become homeless. Put bluntly, this is inhumane.

WE’RE BEHIND THE TIMES

Interestingly, tenancy databases do not even exist in several European countries including Austria, Croatia, Spain, Portugal and Greece. Luxembourg goes one step further, declaring tenancy database listings as a breach of privacy under local law.

As it seems unlikely that tenancy databases in Australia will be abolished, more needs to be done to protect tenants from unjust listings. Victoria is behind several other states and territories in relation to unjust listings. New South Wales, Queensland, Western Australia, Tasmania and the Australian Capital Territory all have a provision in their legislation that allows the local Tribunal discretionary powers to deem tenancy database listings as unjust.

There is no logical reason why Victoria should have weaker protections for tenants in this respect.